Title Conditions (Scotland) Act 2003

– in the Scottish Parliament on 9th January 2014.

Alert me about debates like this

Photo of John Scott John Scott Conservative

The next item of business is a debate on motion S4M-08666, in the name of Christine Grahame, on behalf of the Justice Committee, on its report on the inquiry into the effectiveness of the provisions of the Title Conditions (Scotland) Act 2003. I call Christine Grahame to speak to and move the motion on behalf of the committee. Ms Grahame, you have 10 minutes or thereby.

Photo of Christine Grahame Christine Grahame Scottish National Party

Ah. “Thereby” is tactful. I welcome the opportunity to open the debate on behalf of the Justice Committee and thank all those who provided written submissions and gave oral evidence to the committee.

You may feel that you have drawn the short straw, Presiding Officer—perhaps we all have—because I have 10 minutes yet again. I may struggle to fill the time, although I probably will fill it. Fear not—the subject is full of life. On the face of it, it looks like the driest of dry topics—and, my goodness, we have had a few of those in here—but not a bit of it. Although the language is technical and the law is a bit tricky, it is to do with day-to-day problems that cause real distress and angst for people.

First, here is the tricky bit. There will be a test afterwards. I should say in passing to my colleague Colin Keir, who is lurking somewhere behind me—I am sworn to non-disclosure of this, so I am breaking a promise—that his request for an explanation in pictures is, regrettably, not practicable in the chamber. So, let us take a deep breath.

Title conditions are legal obligations that appear in the title deeds of land and buildings. They burden one property for the benefit of another property and survive changes in the ownership of the properties concerned. Often, they appear in the title deeds of groups of properties, and the owners in question have mutual rights to enforce the conditions against each other.

The word “burden” should not frighten the horses; I will give an example. Members may have been there themselves. If they have not, I am sure that they will have had constituents who have been in this pickle: when communal repairs to the roof or stairwell of a tenemented property are urgently needed, but only those who are affected—let us say the top-floor flat occupants—feel the urgency as they watch the damp patches spread across the ceiling and hear the drip, drip, drip of unwelcome rainwater in the eaves. If there is no factor to instruct—more of that later—the situation is even more trying. The six or eight tenemented properties may share the liability for the cost of the repairs to the roof, but because of those tricky little title deeds and those burdens, saying it is easy, while getting the money for the work to be done is quite another matter.

We can add to that mix the difficulty in getting repairs agreed and paid for when some of the properties in the tenemented building are owned by people who exercised the right to buy those properties from the local authority, while other properties are rented from housing associations. Mixed ownership makes it even more difficult to get any kind of agreement, no matter what it says in the title deeds about getting the leak in the roof fixed.

It should be an advantage to have a factor who is employed to manage all that for everybody in a tenement or a bigger development where there are shared liabilities for repairs and maintenance of what I will call common property—which means roofs and stairwells, although it can include walls, fences and so on. If people have a good factoring service that they pay for, that is all well and good, but it is very difficult for people to switch factors if they are not happy with the service. Why is that? It is because—this is what it says in those tricky little title deeds—it can require the agreement of two thirds of the people who own the properties.

The first problem is that not all tenement flats are occupied by the owners. When there are absentee landlords, who does one tell or ask for agreement? It is tough enough in any event to get agreement, let alone to know who to ask. The first step would be to make it easier, one way or another, for those who require information to identify the landlords. The committee’s view is that the Government should legislate so that factors could tell everybody else who owns the various flats. That is not easy, however, because it would breach data protection rules. I know that the Government is not keen to do that; it would be helpful to know why because it is a big issue for people. It would also be helpful if the Government would tell us what it would do.

I move on to another tricky issue; this one is worse. Section 53 of the 2003 act gives neighbours a right to enforce burdens in title deeds—do members remember what those are?—against each other, in which there is something called a “common scheme” and the properties are “related”. I will test the Presiding Officer on that later. The phrase “common scheme” and the word “related” are very vague. After all, a person will know that the roof above their block of flats or the common stairwell that they share with each other in their tenement might give them a responsibility to pay for their maintenance and repair.

However, the trouble is that they might also be liable for some other common scheme of maintenance, perhaps at some distance, in the development in which they live. That might involve, for example, open areas that are not right next door to a person’s block of flats, above their head, or the stairwell and are not identified clearly in those tricky title deeds. What on earth does that mean a person is responsible for? That has caused a lot of problems.

The matter is so tricky that we asked the Government to invite the Scottish Law Commission—who are just the chaps and chapesses to deal with tricky legal issues when one does not know what to do—to review section 53 as part of its work programme. Thankfully, it has accepted that recommendation, so I hope that, in due course—as the lawyers would say—the matter becomes so clear that even I and perhaps Colin Keir and John Lamont will understand it.

Photo of John Lamont John Lamont Conservative

I congratulate Christine Grahame on doing an admirable job in explaining very complex areas of law. Does she agree that part of the problem lies with how solicitors report to their clients? There is an obligation and need for solicitors to explain clearly to clients what responsibilities and obligations they must undertake when they buy properties.

Photo of Christine Grahame Christine Grahame Scottish National Party

If only John Lamont had waited until to the end of my riveting speech—I will come to that.

I know that this is riveting stuff—I have said so several times and I need to keep on saying it—so members will be sorry to see me sit down, but this is the final straight, unless of course John Lamont is hungry for more. The issue concerns land maintenance companies such as Greenbelt Group Ltd. I will not malign the company; the matter does not apply to it alone, but I merely use it as a convenient name that is publicly recognised as a company in this field. Speaking of fields, that is sometimes what residents find around their front door instead of the paid-for manicured lawns and well-tended shrubs for which they pay land maintenance companies a fee.

It is quite common on a modern estate to have open green land that is owned by a company that then charges for its maintenance. However, the trouble arises when the company does not maintain that bit of green space but the bill still lands in the homeowner’s letterbox. As with the reluctance of those who are not immediately affected by roof leaks, those who are distant from the thriving weeds and overgrown shrubs are not keen to get involved in taking the maintenance company to task. There are rules set up—those might be in a deed of conditions binding all the people on a big estate, which may be 60 to 100 people, to share such costs—that require them to set up an owners association to deal with the maintenance company, but they do not bother to do that. Consequently, everything gets stuck in individual disputes, amounting on occasion to the refusal of a homeowner to pay his or her bill, which certainly gums up any prospect of replacing the maintenance company.

Our recommendation—although we accept, especially in the current stringent climate, that it is a long-term goal—is that local authorities take over and see to the maintenance of such green spaces, much in the way that they eventually do the maintenance of roads in such developments. The committee felt that some mechanism for resolution is needed now—perhaps mediation—to resolve disputes in the interim.

Intriguingly—a word that only lawyers and former lawyers would use in the context—land maintenance companies might not be legally entitled to charge, being both the owners of the land and imposing the burden for maintenance while asking other people to pay for it. It is arguable that being able to look at the land and walk over it is not a benefit.

There was a delightful and slightly mischievous interchange between Professor Rennie and Professor Reid on whether land maintenance companies can charge at all, which is discussed on pages 18 to 20 of our report. I commend it to all who are with me so far. I could expand on that, but I do not have the time and—hey!—I do not want to spoil a good read. However, it is a rallying call to some chirpy lawyer out there to bring forward a test case, particularly if they can find the required man or a woman of straw who might access legal aid to fight one of the big boys.

I come to Mr Lamont’s point. I offer a word in the ear of prospective house purchasers, which is already imparted by lawyers, I think. The excitement and drama of purchasing a home—some of us have been there—should not drown out the voice of the lawyer in the purchaser’s ears telling them in plain English, I hope, about liabilities for the roof. For instance, the person who owns the top flat might be liable for all the roof maintenance. The lawyer should also tell people what the deed of conditions might mean to their monthly bank balance.

It is better for the home owner to attend to a few loose slates or a leaking gable before they invest in an unnecessary replacement kitchen. Although the law needs to be overhauled in some areas and tweaked in others, it is also a home owner’s responsibility to ensure that the fabric of the house is not neglected for the sake of some more glamorous gadgets.

I am 33 seconds over. That is not bad.

I move,

That the Parliament notes the conclusions and recommendations contained in the Justice Committee’s 8th Report, 2013 (Session 4): Inquiry into the effectiveness of the provisions of the Title Conditions (Scotland) Act 2003 (SP Paper 338).

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I am pleased to respond to the debate, which falls under the heading of post-legislative scrutiny by the Justice Committee.

The work that the committee carried out was, as we might expect, wide ranging. Among the main issues were property factors and land maintenance companies. I will say something about those, because most members will have dealt with cases involving one or the other of those subjects—if not both—at some point in their careers.

There has, of course, been relatively recent legislation in the area: the Property Factors (Scotland) Act 2011, which was introduced by Patricia Ferguson. Therefore, I am not surprised to see her in the chamber. The Government has carried out work to implement the 2011 act, which provided for a compulsory register of factors and land maintenance companies, a statutory code of conduct and the Homeowner Housing Panel. Home owners can apply to the panel if they believe that their factor or land maintenance company has failed to comply with the code of conduct or has otherwise failed to carry out its duties.

Since it started operating on 1 October 2012, the panel has received more than 300 applications. About two thirds have related to property factors, and one third to land maintenance. As members might expect, a number of those applications have subsequently been withdrawn or rejected for a variety of reasons. Applicants must, first of all, go through the complaints procedures that the factor or land maintenance company itself operates; the panel exists to deal with disputes on matters that have not been resolved, for example on standards of service. The panel has now heard about 20 cases and decisions are published on its website.

The 2011 act did not deal with all the issues on property factors and land maintenance companies. In particular, it did not make any changes on switching or dismissing and replacing factors or land maintenance companies, which is one of the key points that the committee considered.

The 2003 act contains provisions on the dismissal and replacement of factors. In new housing developments, the housing developer often appoints a factor through a manager burden. Manager burdens are time limited, with the normal period being three years. Once the initial period has expired, owners can appoint a different factor. That is done either by simple majority or through provision that is laid down in the title deeds. Once the manager burden has expired, a two-thirds majority can always dismiss and replace a factor regardless of what the title deeds say. In right-to-buy cases, a two-thirds majority can dismiss and replace the factor straight away.

Our view is that those legislative provisions on factors are generally satisfactory. The provisions on manager burdens allow a period of stability when a development is new; thereafter, home owners have the opportunity to switch factors.

The committee raised some specific points on right-to-buy cases. As issues in that area seem to be declining, given the fall in right-to-buy sales and the Government’s planned abolition of the right to buy, we are not planning any legislative changes on switching of property factors.

However, we agree that the legislation is not always easy to understand, so we will issue guidance on a number of issues, including information on the duration of manager burdens that builds on the explanatory notes to the 2003 act, and information for factors on making a home owner’s details available to other home owners, which might make it easier for home owners to obtain the necessary majority to switch factors. That relates to the point that Christine Grahame made about disclosure of owner information—she mentioned the difficulties with data protection. There is the added complexity that data protection is a reserved rather than a devolved matter, which means that addressing the issue in legislation would result in further difficulty for Parliament.

We will also provide public-facing information on dismissal and replacement of factors, and a guide on establishing residents associations. In some cases, guidance may be included in the publication “Common Repair, Common Sense”, which the Government took over from Consumer Focus Scotland last year. It is a well-written publication, which we will expand to provide further information to flat owners.

As I have said, there is existing legislation on dismissal and replacement of factors. The position is, however, much less clear when it comes to the dismissal and replacement of land-owning land maintenance companies. We have given serious thought to legislation in that area and have consulted on the issue. We are not saying that we will never legislate; if voluntary routes cannot deliver progress, we will legislate, but at the moment we are preparing a code of conduct on dismissal and replacement of land-owning land maintenance companies, which will cover matters such as the majority that is required, information that companies should provide to home owners, the transfer of the ownership of the land, and future arrangements for maintaining the land.

As our response to the committee indicated, we decided against legislation at this stage because land maintenance companies have been subject to recent legislation—the 2011 act. It was also uncertain whether legislation would be any more effective than a code of practice and any such legislation would, of necessity, be complex. It was a marginal decision—we could have legislated—so we will review the effectiveness of the code, keep the matter under close scrutiny and will come back to the Parliament, if necessary.

In our response to the committee, we indicated that, in the longer term, we will carry out a review of the arrangements that are in place for land maintenance on housing estates. Thoughts from members on what we could consider in that review would be very welcome.

The committee also raised concerns about access to the Lands Tribunal for Scotland. I know that my colleague Sandra White has particular concerns in that area. The issue that the committee raised was expenses liability. We are considering various potential options and, as we promised in our response to the report, I will write to the committee on the matter again. Potential options include—as the Lands Tribunal suggested in supplementary written evidence—a cap on expenses or changing the provision in the 2003 act on expenses to refer to “reasonableness” rather than to “success”.

The Lands Tribunal also suggested that it could be authorised to make more decisions on the basis of written material and site visits in order to reduce expenses. I understand the concerns that have been expressed about individuals facing potentially large bills for expenses, but we need to ensure that we are treating all parties fairly. We will write to the committee with our further thoughts.

The committee considered section 53 of the 2003 act, which gives enforcement rights to neighbours in respect of certain real burdens in title deeds that were created before 2004. The section was not in the original draft bill that the Scottish Law Commission proposed, but was added as the bill made its way through Parliament. The committee recommended that the commission review section 53. The Government has accepted that and, as the committee’s convener indicated, the Law Commission has agreed to a reference in that area. Work on that is most likely to commence early in its ninth programme, in 2015.

The Government is grateful for the committee’s report. We have responded to it and have provided an action plan. We will keep the committee and Parliament closely informed and will carry out monitoring, where that is necessary.

I will make a small final point. I am acutely conscious that, once again, we are involved in a debate in which David McLetchie’s sense of humour is sorely missed. He could always be relied on to provoke laughter from even the most unpromising material and his absence is felt nowhere more than in debates such as this.

The Deputy Presiding Officer:

Hear, hear. Many thanks.

Photo of Graeme Pearson Graeme Pearson Labour

I acknowledge the minister’s point about the absent member, who was a tower of strength in my time on the Justice Committee. On occasions, he was a good shield when our convener got out of hand.

Our convener mentioned that this is a dry topic. My experience in two years as a member of the Justice Committee was that we visited many a dry topic. There is no doubt that, when I received the paperwork for the inquiry, I did not look forward to an exciting time. However, it was on occasions an exciting time, as witnesses expressed diametrically opposed views on whether the subject was being properly or badly covered.

The inquiry did not represent the first time that the convener had led me astray on such matters and got me involved in complex issues that are difficult to deal with. Nevertheless, I feel a better person for having gone through the experience. I have no doubt that I will cope with such challenges much better in the future.

I thank the committee clerks, the people who gave evidence to enlighten the committee about the challenges that are faced and the officials who supported the committee’s work.

The Title Conditions (Scotland) Act 2003 was a key part of the Parliament’s reform agenda for land ownership in Scotland, alongside elements that included the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Tenements (Scotland) Act 2004. The 2003 act updated the law on obligations—title conditions—as they appear in title deeds that pass ownership of land and buildings.

As well as binding original buyers, title conditions bind future buyers, so they create perpetual obligations that run with the land. That is the nub of many of the issues that caused conflict as we listened to witnesses, who seemed to be ignorant of the fact that such obligations passed to them or to much prefer the notion that the obligations never existed in the first place.

The inquiry into the 2003 act had four main elements. We sought views on whether the act creates a barrier to switching property factors and on whether it offers sufficient recourse for people who are dissatisfied with the services of land-owning maintenance companies. We sought experiences of the options that are available under the act to vary or remove existing real burdens. We also considered the practical operation of section 53, as we have heard.

We made many recommendations, which covered a host of elements of our debate. I will not repeat much of what has been said about that. It became apparent that, as much as the factors issue that our convener outlined caused concern, particularly in tenemental property, a great deal of emotion and heat was created when we discussed those who are involved in land management companies and the impact of those companies’ work on estates and new housing partnerships.

That conflict involves a number of elements, one of which is the contract that is deemed to exist between occupants of homes and the companies that provide services in the area, including green space services. Another issue is the ability of tenants or home owners to vary their relationship with service providers. It is fair to say that there was a quandary about whether the services are provided at an economically viable rate and about the quality of service delivery. There was no way of resolving that satisfactorily in debate in the committee.

The recommendations, which our convener outlined and to which the minister has responded, offer a way forward in a difficult set of circumstances. I look forward to colleagues contributing to the elements of the debate.

Photo of John Lamont John Lamont Conservative

I welcome the opportunity to speak in this debate on the Justice Committee’s inquiry into the effectiveness of the Title Conditions (Scotland) Act 2003.

I was a substitute member of the Justice Committee when it conducted its inquiry. The written and oral evidence that we received was informative and very useful in understanding the issues in hand.

During my time as an MSP, I have been contacted by many constituents who have had concerns about the operation of property factors and in particular the mechanisms surrounding so-called land-owning maintenance companies. Those companies are given ownership of common property in new housing developments, such as parks, open spaces and play areas, with the burden attached to maintain that land in exchange for a fee.

The committee found that there were issues surrounding the dismissal of land-owning maintenance companies, particularly where residents were unhappy with the level of service that was being provided. I welcome the Government’s response that it will prepare a code of practice. Perhaps during the debate the minister can outline the proposed timetable for the work to prepare the code.

Although the inquiry focused on the provisions that deal with property factors, the report very much touched on issues that are relevant to local government. The committee heard that land-owning maintenance companies sometimes came about when local authorities withdrew from taking on the responsibility for the maintenance of open spaces around new developments.

The report was right to note that local authorities need to look seriously at whether the maintenance of those common areas is being carried out in a fair and equitable way. The adoption and maintenance of common spaces would have resource implications for local councils, but we must be careful to avoid creating disparities in the services that are provided to council tax payers in new-build property developments and those in older developments who have their open spaces maintained for free by their local authority.

I highlight to members that, in the Government’s response to the inquiry, it noted that Clackmannanshire Council has recently called for a change in the law so that the adoption and maintenance of public spaces should be treated consistently with the adoption of associated public roads, footpaths and street lighting.

I welcome the Government’s indication that it will take steps to promote the use of owners association schemes to maintain common areas in the short term and work with local authorities in the long term to consider the future role of councils in the maintenance of land in new developments.

The inquiry came across some interesting, if perhaps technical, points about the 2003 act. We heard that there were issues surrounding the enforceability of real burdens where a land-owning maintenance company was involved. In order to create a burden, a developer must own both the property to be benefited by that condition and the property to be burdened by the condition. Typically, developers do not transfer the common areas to land-owning maintenance companies until after all the houses in the new estate are sold, which means that they no longer own the benefited property.

That was all explained to us very clearly by Professor Robert Rennie, who taught me conveyancing and commercial missives at the University of Glasgow. At times, the committee evidence session felt more like a tutorial, but the committee heard that there were issues surrounding the enforceability of real burdens. That is important, because it relates to the rights and obligations of home owners. The Government’s response to the inquiry does not appear to acknowledge the legal uncertainty over that point, which is perhaps disappointing. Although there was disagreement about the extent to which that was an issue in practice, I urge the Government to look closely at whether a change in the law is needed in that area.

Professor Rennie and others also told the committee that there were issues surrounding the enforcement and application of section 53 of the act, which extends enforcement rights of real burdens where a “common scheme” is created with “related properties”. We heard that the unintended consequence of section 53 may be to create rights where none had existed before and that it went much further than what was necessary to ensure that housing associations can continue to enforce burdens against owners, which was the primary motive behind the section. I therefore welcome the Government’s response that it will invite the Scottish Law Commission to review that section.

As modern housing developments become more common, issues surrounding property factors and the maintenance of shared spaces will affect more people. Some of my constituents certainly feel that there is room for improvement on the right of home owners to enforce their rights in relation to common areas and spaces in their developments. I hope that, following the inquiry, we can take steps to provide greater clarity and fairness in this area of the law.

Photo of Elaine Smith Elaine Smith Labour

We now turn to the open debate, with speeches of four minutes, please.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

It seems a long time since the Justice Committee took evidence for its inquiry into the Title Conditions (Scotland) Act 2003, but it was in fact in March last year. In the short time available, I will make a few points, although I cannot promise the convener the levity that she might hope for.

It is common ground that section 53 of the 2003 act does not work in its current form. As Professor Rennie said,

“what section 53 may have done is give people enforcement rights in pre-2004 title conditions that they did not have before the legislation.”—[Official Report, Justice Committee, 19 March 2013; c 2531.]

Section 53 was not part of the original Scottish Law Commission proposal but was inserted at stage 2 to cure a particular problem. There might be a lesson for the Parliament in that about consideration of bills at stage 2. Section 53 is unclear and it is virtually impossible for advisers to advise their clients competently on it. I therefore welcome the fact that the section has been referred to the Scottish Law Commission, although I am disappointed that it might be 2015 before the commission can start work on that.

I move on to land-owning maintenance companies that manage common parts of estates and the difficulties with removing them. It came out of our inquiry loud and clear that, where the land-owning maintenance model prevails, the rules in the 2003 act to enable a majority of owners to change factors have no practical role at all because, where common areas are owned by such companies, the manager is not technically a factor or manager, as the company manages not other people’s property but its own property. Even if a factor can be changed, while the original factor retains the land, factor 2 will have nothing to manage.

Alternative thinking is required if we are to tackle that problem. Some witnesses from the factoring side talked optimistically about changing managers. For example, the witness from Greenbelt Group mentioned its consumer choice programme. However, there seems little evidence of interest in that on the part of house owners. Therefore, with respect, I think that we are likely to need something more radical. The community right to buy was mentioned and is at least worth considering, but we should not pretend that purchasing such areas would have the attractions that purchasing parts of rural or sporting estates would have. Compensation would need to be paid and legal expenses would be incurred, so that approach would clearly not be for the faint hearted. The Government favours a code of practice, although the devil will be in the detail of such a code. However, I am pleased that the Government recognises that the issue needs attention.

In relation to the enforcement of demands for payment against property owners in respect of costs that are incurred in maintaining areas of estates, evidence to our inquiry suggested that, depending on the terms of the title deed, such demands might be unenforceable in so far as they relate to a property that does not have a connection to the owner’s property. If there is no right or servitude over the common land, it is possible that the land maintenance company has no right to recover costs from an owner. I slightly disagree with John Lamont, in that I thought that the professors were slightly divided on the issue of enforceability, but they agreed that a test case would assist. Obviously, the land maintenance companies seem to be in no hurry to resolve the issue, so we will just have to see whether the man of straw with legal aid that the convener referred to emerges any time soon. More particularly, I welcome the Government’s acceptance that, in the long term, arrangements for land maintenance should be discussed and reviewed with local authorities, developers, the maintenance companies and, of course, consumer representatives.

On the legal expenses that are involved in taking applications to the Lands Tribunal for Scotland, ironically, one point that has been expressed in evidence on the Tribunals (Scotland) Bill, which the committee is still considering, was about the desirability of keeping any expenses in the Lands Tribunal moderate and therefore in keeping with expense rules in tribunals generally. One point that emerged from our inquiry is that the Lands Tribunal’s approach to expenses prior to the 2003 act was normally not to make an award of expenses against someone who had unsuccessfully defended an application. Of course, that approach was curtailed by the terms of section 103 of the 2003 act. The Tribunals (Scotland) Bill currently allows for the Lands Tribunal to make an award of expenses. It would be appropriate to review the whole issue of the level of expenses when the new system starts operating, if the Lands Tribunal still operates in that new system. That is of reasonable urgency.

Photo of Patricia Ferguson Patricia Ferguson Labour

I am grateful for the opportunity to speak in the debate. As colleagues will know, I am not a member of the Justice Committee, but I listened to the committee’s deliberations on the Title Conditions (Scotland) Act 2003 and read with interest the papers that the committee and its witnesses produced during the inquiry.

As colleagues heard from the minister, in the previous session of Parliament I took through a member’s bill to regulate the factoring industry, and it is from that viewpoint that I offer my observations on the committee’s report, particularly as it relates to switching factors.

I must admit that I had a feeling of déjà vu when I read the report, because many issues that the committee heard about were all too familiar from my experience. How do we make it easier for owners to switch factors, when there are so many complicating factors? What changes can we make that would be fair to everyone involved?

The committee has explored the area thoroughly and identified the problems. In most situations, a two-thirds majority of owners is required before a change can take place. However, what do people do when they cannot persuade two thirds of owners to come to a meeting, or when the majority of owners rent out their properties and are not easily accessible? The obvious answer is to reduce the number of people who are required to make a change, but how low do we go without making the process inherently undemocratic or unfair? How do we prevent a small group of people from making decisions that have an effect on the majority, albeit that the majority might be silent or even apathetic?

I understand from the Scottish Government response that the Government plans to consider whether the code of conduct for property factors should be changed to allow factors to give owners the contact details for other home owners in a development or property. I can understand why the Government wants to consider the approach, which I agree would be a step forward.

However, I sound a note of caution. Owners who are resident in an estate or building can easily contact other resident owners simply by putting a mailshot through their doors. The mailshot does not have to be addressed; it can just be delivered. As members know, the problem arises when an owner is not resident in the property. In my experience, a non-resident owner who has not put in place a mechanism that makes him or her contactable is unlikely to be interested in changing the factor or in getting involved in discussions about doing so. Indeed, they might not co-operate at all if a cash outlay happens to be in the equation. By making it possible for factors to give out contact details we might enable people to fulfil a requirement to contact all owners, but that will not guarantee owners’ co-operation, which is the important aspect.

Another area that I hope the Scottish Government will consider and perhaps act on is the agreements that are put in place for new developments. As we heard, the developer often makes an agreement with a property factor before work is completed on the estate or properties. The arrangement will often specify that the deal is in place for a period of, say, two years after the project’s completion. Therefore, people who buy properties in the development should know what the agreement is. However, in many areas developers have left developments uncompleted because of the economic downturn, so that first hurdle has become almost insurmountable. That means that owners can be left in limbo, finding that they just cannot switch. I have dealt with a difficult case like that in my constituency and, thanks to the work of a determined and committed group of owners, a switch eventually took place, but I wonder whether the Scottish Government will consider how the issue might be addressed, preferably without people having to have recourse to the courts.

The Deputy Presiding Officer:

You must conclude now, please.

Photo of Patricia Ferguson Patricia Ferguson Labour

Thank you, Presiding Officer.

I hope that the Scottish Government will consider people who do not have a factor but need one. Properties throughout the country are deteriorating rapidly, simply because factors are not in place.

I would have liked to have talked about land-owning maintenance companies, but I do not have time to do so, other than to say that the position is complex and I do not know how we can make it more simple—if I did, I would wave my magic wand and do that today.

Photo of Christian Allard Christian Allard Scottish National Party

I welcome this debate. I joined the Justice Committee a few months ago, too late to have any input into its excellent report, “Inquiry into the effectiveness of the provisions of the Title Conditions (Scotland) Act 2003”—not the most engaging title, if I may say so.

As we heard, the report is about properties and land, and their ownership and maintenance. I note that the Justice Committee and the Scottish Government agree that we have a cultural problem with land and property ownership in Scotland. Today we have an opportunity to tackle a culture that glorifies consumerism for the many but reserves ownership and control of properties and land for the few.

Last night, BBC 1 Scotland exposed that culture in its excellent programme, “The Men Who Own Scotland”. BBC reporter David Miller used the examples of Scandinavian countries and France to show how different the culture is in other countries. Paul Wheelhouse, Minister for Environment and Climate Change, gave our party’s vision for the future. It is a vision that I share—a vision of our rural and urban communities taking a full part in managing land and properties.

I agree with the BBC programme last night and with the response of the Scottish Government today: we do not need a revolution or even legislation to change this culture. We need to define the direction of travel for the future of property and land in Scotland as regards both ownership and management. Doing nothing is not an option, as the report said. A strong code of practice is the start that our communities need to gain control of the management of land and properties—management that they are paying for. I join John Lamont in his call for more information on the timing of the establishment of such a code from the minister.

In January 2009, in my home town of Westhill, more than 110 residents heckled the boss of the firm Greenbelt Group over the upkeep of open spaces. The boss admitted that pictures showing the lack of upkeep of treasured open spaces in the neighbourhood were “terrible”. I remember that the public meeting was long and heated, with members of the Scottish Parliament sitting alongside Aberdeenshire Council employees, representatives of developers and councillors to hear the explanations from the company. I was there, and the explanations were not adequate then and are still not adequate now.

The committee and the Government found that the main reason that the position of consumers of services that are provided by landowning land maintenance companies appears to have improved in recent years is that individuals and organised groups of residents have given up. After many years of fruitless negotiations and protests, they have returned to their normal lives.

The local resistance to the Greenbelt Group has largely dissipated in my home town, with the majority of the Leddach Grange residents appearing to have grudgingly accepted that payment is unavoidable. They feel let down, not only by the people from the Greenbelt Group but by local authorities and local developers. Firms such as Greenbelt continue to profit while residents pay through the nose for relatively basic services. I thank Charlie Flint for his email on that subject—Charlie formed the Leddach Grange residents association in August 2005. The picture is the same across the region that I represent. I hear that maintenance charges recently increased from £163 to £228 in Inverurie, Aberdeenshire.

I feel that more top-down, complex and impractical legislation is not what is required, as we want to reflect the aspirations of our communities—both urban and rural. I thank the members of the Justice Committee at the time of the inquiry for their work and the Scottish Government for its measured response.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I join colleagues across the chamber in thanking those who submitted evidence during the review of the practical operation of the Title Conditions (Scotland) Act 2003 and in thanking the clerks for their work during the course of the inquiry.

A decade on, it is important to consider whether the act is really working for consumers and whether home owners are sufficiently able to appoint or dismiss traditional property factors or enter into meaningful discussions with landowning maintenance companies. That is essential if we are to preserve the integrity of those relationships and, in turn, the integrity of the buildings or open spaces concerned.

The committee has identified a number of areas in which the act has arguably fallen short of expectations. For example, it has been criticised for being complex, incomprehensible or impractical for home owners who want to exercise their right to switch property factors.

The committee concluded that more could be done to foster a culture of common maintenance and tackle home owner apathy through education and the formation of residents associations. That would help to preserve and enhance the quality of our housing stock, and I welcome the Government’s commitment to produce guidance on that.

In the limited time that I have, I would like to highlight the need to further consider the relationship between home owners—most commonly in modern private developments—developers, councils and landowning property maintenance companies. I expect that the majority of MSPs, if not all, have been contacted by constituents who have experienced difficulties with businesses operating in this area. It is certainly an issue in Aberdeen and Aberdeenshire.

There are cases where residents believe that the maintenance of communal areas has not occurred for months or even years; cases where residents are pursued for payment for work that they believe has not taken place; and cases where residents are faced with what they deem to be unjustified rises in management charges.

I have long been concerned that there seems to be insufficient means of redress for home owners who are dissatisfied with the standard of service that is provided. They are often left feeling helpless and bound to a company against their will. It strikes me as perverse that those who have the foremost interest in the condition of those spaces too often have no opportunity to influence or contribute meaningfully to their management.

I appreciate that the situation appears to have improved in recent years, as the committee acknowledged in its report, but there still seems to be no mechanism for dealing with disputes about charges, and in reality there is no option for people to change their provider if the service falls short of expectations.

The committee suggested that a mediation service could be set up to assist with bill disputes, and that the Office of Fair Trading may wish to re-examine the market. Those suggestions are worthy of serious consideration, and I am a bit disappointed at the Government’s response, which suggests that little progress will be made in either of those areas despite the fact that the committee has deemed them a priority.

The decision by local authorities to transfer the burden of responsibility for the maintenance of communal areas is a pragmatic response to limited budgets, among other pressures, but they must retain a long-term interest in the condition of communal space. Maintenance of public open space is of a different order—as it is of community benefit—to the maintenance of shared private interests such as roofs or stairwells.

I urge local authorities and the Government to heed recommendation 8 in our report, and to use the levers at their disposal to ensure that land maintenance arrangements are fair and sustainable. That will help to promote good relations and allow urban green spaces and amenity lands such as play parks to be cherished, as we know how valuable those are for the whole community in boosting physical activity and mental health, attracting investment and creating places where people want to live. We must also remember the practical considerations, such as the fact that, in this day and age, those spaces may provide sustainable urban drainage schemes, and the failure of SUDS schemes will have a wider community interest that goes beyond particular private owners.

The Deputy Presiding Officer:

The member should come to a conclusion, please.

Photo of Alison McInnes Alison McInnes Liberal Democrat

In seeking to improve standards in the property management and maintenance sector, many of the issues centre on devolving power to the most local of communities: residents who share a stair or neighbours on an estate. We have a responsibility to ensure that those people are aware of their rights and are sufficiently able to exercise them, which will empower them to improve and take pride in their homes and local areas.

The Deputy Presiding Officer:

I am afraid that we are a bit tight for time, and if I am to include everyone in the debate I need members to stick to their four minutes, please.

Photo of Sandra White Sandra White Scottish National Party

I thank the other Justice Committee members and the clerks, and I also thank Jenny Marra, who proposed that we carry out an investigation into the provisions on title conditions. Although the legislation may seem complicated and dry, it is very much a people’s act and it affects many people’s lives.

I thank the minister for her comments on access to the Lands Tribunal for Scotland. That issue has certainly caused much anguish in my constituency in the west end of Glasgow, where people who wished to appeal against a development being built in a front garden of a property, of all places, found that it would cost them tens of thousands of pounds. I appreciate that the Government is progressing recommendations in that respect, because we need to look at the issue. We should not expect ordinary people to have to spend £10,000 or £20,000 on appealing against a development.

Another issue is the switching of factors. I take on board Patricia Ferguson’s comments about the Homeowners Housing Panel, which I agree has done a fantastic job. There are problems at times with the two-thirds majority requirement and with absentee landlords, and it is important that we look at those issues. The committee received evidence to suggest that the Data Protection Act 1998 is not a barrier and does not prevent factors from giving out the names and addresses of other proprietors.

I welcome the minister’s comments and the Scottish Government’s move forward in that regard. The problem of absentee landlords is not just about repairs but about getting something done in a tenant’s property or wherever. It is important that everyone is told about the repairs that are to be done, how much they may cost and where things will go from there.

I want to comment on the situation of switching factors. I have many cases, as I am sure other members have, but for a particular one involving a property in the centre of Glasgow I have visited both factors and residents. Everything in that case has been done according to the legislation, but even though a new factor has been appointed the previous factor will not pass on information to them and has held on to floats and residents’ moneys. I know that we can go to the Homeowner Housing Panel on the issue, but what do we do when a factor ignores residents’ wishes? That is a very real problem generally and not just in that particular case.

On repairs issues, factors can be taken to the Homeowner Housing Panel and it can tell them that they are in the wrong and that the residents and home owners are in the right, but the factors can refuse to accept the panel’s recommendation. What recourse do home owners have in such cases? I ask the minister and the Government to look into that; real issues are taken to the Homeowner Housing Panel but factors ignore the panel’s recommendations. What recourse do residents and home owners have?

I know that time is short, Presiding Officer—I see you nodding to me—so I will finish here. The 2003 act is a very important piece of legislation because it is about fairness for residents—and factors—and ensuring that they get the good service that they pay for.

Photo of Colin Keir Colin Keir Scottish National Party

I associate myself completely with the comments made earlier about David McLetchie’s sense of humour—he is definitely missed in this chamber.

Like my former colleagues on the Justice Committee, I thank the witnesses who gave evidence to the committee for our inquiry. We went from feeling that it was a dry debate to feeling that it was a very important and quite fascinating one. Members have highlighted most of the inquiry’s findings, but I will explain what I got out of the inquiry.

I could feel Patricia Ferguson’s frustration when she was speaking earlier about the difficulty of getting things changed in relation to landlords, tenants and buildings. In my previous existence as a councillor, I was chair of the City of Edinburgh Council regulatory committee that dealt with licensing for houses in multiple occupation. We dealt with all the problems of burdens and the fact that factors did not act responsibly in some instances. It was deeply frustrating, for example, trying to get representatives of eight properties together when three or four of them were absentee landlords. I fully understand where Patricia Ferguson is coming from on that kind of issue, which can be very difficult, particularly when it comes to common repairs and the like. Dealing with those matters took a lot of time.

As an MSP, I have dealt with various related issues in my constituency. In my area on the west side of the city, we have a number of suburban-type properties that have factors and burdens, including management fees, and we have had difficult situations with them. For example, as was mentioned earlier, although developments might have been built with the idea that there would be residents associations, many of them become moribund. The fact that there was no residents association made it difficult for me in a particular case to identify who was paying what to whom and who represented and could speak for the community.

In that case, frustrations built up among residents regarding the relationship with the land management company that dealt with a grass area. The residents felt that they were not getting value for money and that there was no way of getting their voice heard by the management company, so the relationship between the two parties fell apart. Indeed, it was a good example of how things can go wrong.

There had been a turnover of residents, but the current residents thought that one area was supposed to be a part of the land management scheme. It turned out that the land was not part of the scheme. The land was terribly overgrown, but the land management company said that it could not deal with the land because to take it on would mean that the company would be seen as being liable and having presumed ownership.

I thoroughly agree with the comments that all members have made about the difficulties, and I welcome the minister’s comments. The legislation deals with something that is very important to people who live in particular areas. We must do our best to sort out the difficulties.

Photo of Jenny Marra Jenny Marra Labour

A critical function of this Parliament—and one that, as I know many colleagues agree, we do not do enough of—is post-legislative scrutiny to review our laws and check whether they are serving people properly. It was with a few sighs that, last March, the Justice Committee undertook its inquiry into some of the provisions of the Title Conditions (Scotland) Act 2003. As Sandra White said, I must take some responsibility for the suggestion, but I think that the outcome has been very good.

The 2003 act is a technical piece of legislation, as Christine Grahame explained to us very well, but it is critical to people when their property comes up against the issues for which it provides. I took a particular interest in section 53, having been approached by concerned constituents and persuaded that it was not working as was intended and has had unintended consequences. Those concerns were borne out by the evidence that the Justice Committee heard last year.

Section 53 is about the right of neighbours, or people in “related properties”, to enforce burdens against each other. I will not go into an explanation of burdens, because I do not think that I could do it better than the committee convener did. The problem is that enforcement rights can be found to exist where no one intended them. Professor Robert Rennie, who has already been quoted in this debate and is one of Scotland’s leading property lawyers, said that the effect of section 53 could be to create rights where none existed before feudal abolition and that people who were not subject to conditions before 2004 suddenly become subject to burdens without their consent.

We were told that section 53 is causing uncertainty. With the provision on “related properties”, it is difficult for people to work out who might have a right to enforce a burden against their property in the future, and it is costly for prospective property owners to instruct lawyers to work out who might have that right of enforcement against them—say, if they decide to build an extension to their property. Often, solicitors cannot identify an exhaustive list of who may or may not have enforcement rights against their clients. There is uncertainty in a field of law in which it is highly desirable for people to have as much certainty as possible, especially when they are buying a property.

Several law firms explained the problem. Biggart Baillie described it in its written submission, and Brodies LLP and Pinsent Masons raised similar concerns and frustrations. In the light of the uncertainty, which affects property sales, and the evidence that section 53 was inserted by a stage 2 amendment to the bill, as Roderick Campbell said, with the intentions and consequences perhaps not being properly scrutinised or foreseen at the time, I agree with the Justice Committee’s recommendation that section 53 be referred to the Scottish Law Commission for review, and I welcome the Scottish Government’s acceptance of that recommendation.

I note that the review will most likely commence in 2015 as part of the ninth programme of law reform, but I ask the minister for guidance on when she anticipates that we will see a change in the law as a result of the review. The review of section 53 is a satisfactory outcome of the Justice Committee’s inquiry, and I thank the clerks, the convener and those who gave evidence.

Photo of Maureen Watt Maureen Watt Scottish National Party

I must admit that when I saw this debate listed in the Business Bulletin last week, I did not immediately want to get involved in it, but on closer inspection I realised that the issues that were raised in the inquiry have probably been raised with the majority of MSPs by their constituents at one time or another. I thank the Justice Committee for finding time in its busy schedule—it has lots of bills going to it—to get involved in this post-legislative scrutiny. I know how difficult it is to find time to do such work.

My interest is twofold. I am interested as a constituency member who has constituents with on-going problems with factors involved in land maintenance, as already mentioned by Christine Grahame and others. I am also interested as convener of the Infrastructure and Capital Investment Committee, which next week will begin consideration of the Housing (Scotland) Bill, which covers many areas relating to housing, including the right to buy, licensing requirements for mobile home sites with permanent residents, allocation of social housing and the use of the Scottish secure tenancy. It also includes the amendment of local authority powers to enforce repairs and maintenance in private homes, a registration system for letting agents, and part 3, which, among other things,

“allows local authorities to apply to the private rented housing panel for enforcement of the repairing standard, setting out the procedure for such applications and the right of appeal.”

I hope that Government officials who are dealing with the Housing (Scotland) Bill will have read the Justice Committee’s report and its recommendations, which I certainly will quiz them on. I will also ensure that my committee’s clerks have a conversation with the Justice Committee’s clerks, to see whether anything can be included in the bill to strengthen it and deal with some of the issues raised by the Justice Committee’s inquiry.

John Lamont articulated very well much of what I wanted to say about land management issues. I am a constituency member for Aberdeen, an area in which there is a housing boom. It is a large part of my constituency casework. Like John Lamont, I am concerned that home owners are not always well informed of their legal obligations on the purchase of a home. I remember that when my husband and I purchased our house more than 20 years ago, the solicitor told us among other things that we could not keep chickens. However, Mike Marriott from the Greenbelt Action Group said in evidence that buyers do not have the obligations spelled out to them, which I think is more common.

Like John Lamont, I believe that ideally green spaces in new estates should be looked after by local councils, as they look after green spaces in older estates. As a regional member, I was at the meeting with Greenbelt in 2011 that Christian Allard mentioned, which was very heated, as he said. It really is sad that these situations arise simply because companies such as Greenbelt cannot agree with house owners what level of land maintenance their fees should cover. As Alison McInnes said, there is not a simple solution because Greenbelt owns the land, so changing factors will not necessarily make much difference.

I sympathise with Patricia Ferguson and Sandra White on the factoring of the beautiful Glasgow tenements, which lots of people have bought to let, meaning that there is not the pride in those lovely tenements.

The Deputy Presiding Officer:

Could I ask you to conclude, please?

Photo of Maureen Watt Maureen Watt Scottish National Party

I welcome the report, which I am sure will inform my committee’s deliberations on the Housing (Scotland) Bill.

Photo of John Finnie John Finnie Independent

In the small amount of time available, I intend to concentrate on the land maintenance issue and commend some of the evidence that we heard, which I will read to you:

“Our mission is to champion an industry committed to improving the quality of living in Scotland by providing this and future generations with properly cared-for open spaces where people want to live, enhancing the value of homes, and adding to the recreational and general amenity in each development.”

That came from Greenbelt, a company that has been mentioned a few times and a company—I will be generous—with which there was some confusion when initially I contacted it. I successfully made contact via the recorded delivery system of the mail, to broker a meeting with a constituent that was to take place with the site manager. Of importance there was familiarity with the site. My constituent, whom I contacted yesterday, told me that it was not particularly successful, given that the site manager had difficulty finding the house. That in itself suggests that there may be a lack of familiarity with the area.

From conversations with neighbours and others, it is clear that there are non-payment issues, performance issues, cases of people not being billed and uncertainty over ownership. Part of that, I think, comes down to what we might call performance management, and the issue of subcontracting also features.

At its outset, the committee report says:

The Committee recognises the value in having in place an effective system to keep the country’s housing stock properly maintained.”

It is important for people to have avenues of redress and, in that respect, the Homeowner Housing Panel and the committee’s suggestion of mediation have both been mentioned in the debate.

This legislation has been called complex—indeed, I believe that the convener called it “a bit tricky”—and, as a result, I went to the layman’s explanation as set out in the explanatory note to the 2003 act. It says:

The Act achieves greater clarity in the law” because it implements

“the recommendations of the Scottish Law Commission”.

Given Rod Campbell’s comments about the specifics of section 53, it is interesting that the issue will return to the commission. In fact, it is not only section 53 that requires to be clarified.

We had discussions with and heard differing views from some of Scotland’s leading academics. I also note the heavy caveat attached to Consumer Focus Scotland’s legal opinion, which says:

“we have reached the conclusion that it would be preferable in the consumer interest to clarify and simplify the legal position by amending the existing legislation.”

I do not have much time to cover other matters but I want to comment on John Lamont’s point about the Government’s response to recommendation 8, which Alison McInnes also mentioned in her speech.

In that recommendation, the committee recognises

“that green space has a wider benefit to communities and that there is a role for local accountability.”

I want progress to be made and am pleased that the Government agrees that one option is for local authorities to adopt and maintain the land. I commend Clackmannanshire Council’s approach in that respect, but I am disappointed that the Convention of Scottish Local Authorities is not going to act on it. I would certainly favour such an approach. Indeed, I can think of a particular area in Inverness where, on one side of the street, there is a long-standing estate where the council is doing an excellent job of maintaining properties; on the other side, where residents are still paying their council tax, that is not the case. I am not being critical of Highland Council—it has been very supportive of the residents in the area—but I think that people should be able to look to their local authority for support and that there should be continuing involvement from authorities. Indeed, that is how I want this issue to be progressed.

Photo of Jim Eadie Jim Eadie Scottish National Party

Despite my obvious deprivation in not being a member of the Justice Committee, I am nonetheless grateful for the opportunity to take part in this debate. Jenny Marra has reminded us of the relevance of the committee’s post-legislative scrutiny of the 2003 act—and, indeed, that such scrutiny is a key role of the Parliament—and the debate has largely been constructive with many good contributions from across the chamber.

The clear consensus is, as Roderick Campbell made clear in relation to the operation of section 53 and common schemes, that the act is not operating as effectively as it should be, and I note that the Law Society of Scotland has welcomed the decision to refer the matter to the Scottish Law Commission for review. I, too, very much welcome the fact that this recommendation by the committee has been accepted and implemented by the Government.

There is little doubt that the relationship between home owner and factor is tremendously important and can, as colleagues have observed, sometimes be problematic. Like other members, I have received correspondence from troubled constituents for whom that relationship has broken down. I was particularly struck by Patricia Ferguson’s comments about non-resident owners. How does one change factors or ensure that common repairs commence when a majority of owners are absent or apathetic? That very well made point resonates with my own experience as an Edinburgh constituency member serving many tenemental properties in Marchmont, Morningside and Polwarth, and such issues certainly affect many people across the city of Edinburgh.

Ensuring that the act’s operation and implementation are as effective as possible is of the utmost importance and, indeed, John Lamont and the Law Society of Scotland have highlighted the need for solicitors to point out home owners’ responsibilities and obligations when advising clients on such matters.

The Office of Fair Trading came to the conclusion, in its evidence to the committee, that few options are available to home owners who are unhappy with the service that they receive from their factor. In its submission, it states:

“the options available to homeowners who were unhappy with the service provided were not effective.”

Clearly, this is a matter of real concern and an area in which further progress needs to be made.

I have received personal accounts from constituents who say that they have no choice over who provides their property maintenance services and few options available to them when standards of service are not met. The area of consumer choice—the issue that Alison McInnes highlighted well—requires further action so that we can address the issues that our constituents bring before us almost weekly.

As some of our constituents have reminded us, they perceive there to be a complete absence of effective choice, and a shortfall in their right to redress. I think that the Scottish Government recognises that in its response. I accept that the Homeowner Housing Panel, which was introduced by the Property Factors (Scotland) Act 2011, will go some way towards alleviating that concern. However, I am of the view that more needs to be done to address issues that cause the most concern to home owners, such as the cost of services.

I look forward to the Scottish Government taking the necessary steps to remove some of the complexity in this area and, more critically, to providing assistance and information to empower home owners in order to bring about an improvement and a rebalancing of the relationship between the factor and the owner. In doing that, it will provide an invaluable service to our constituents and the people of Scotland.

The Deputy Presiding Officer:

We now come to closing speeches. I remind all members who participated in the debate that they should be in the chamber for the closing speeches.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I am particularly pleased to take part in this afternoon’s debate, not least because, as Jenny Marra pointed out, post-legislative scrutiny is so rarely carried out in the Parliament and opportunities are consequently lost to review some excellent and not so excellent legislation that has already been passed and which, without doubt, could be improved.

Ten years on from the passing of the Title Conditions (Scotland) Act 2003, it is indeed timely that some of the more problematic provisions in the act have been the subject of the Justice Committee’s inquiry, for this is not just some arid technical bill. As the minister, the committee’s convener and other members have pointed out, and as all MSPs know from their constituents’ cases, the provisions within it relating, for example, to the factoring of properties, impact on peoples’ lives and their relationships with their neighbours.

The Government’s response to the report’s recommendations was published in September 2013. Ideally, this debate would have taken place as soon as possible thereafter, when the evidence and the findings were uppermost in members’ minds. However, due to the pressure of the legislative programme and the priority that is given to introducing new legislation, the debate is only now taking place.

The inquiry was relatively short and covered only one part of the 2003 act. It is significant that, despite that, the committee felt it necessary to make as many as 11 recommendations. I will concentrate on a couple of the major ones, starting with the concerns surrounding the dismissal and appointment of factors. Of concern is the 30-year period that prevents owners of properties that were previously the responsibility of local authorities from switching factors. Clearly, that period is too long, which is why the committee recommended that the timescale be reviewed. The Government rejected that recommendation and instead stated that the Property Factors (Scotland) Act 2011 should be allowed to bed in before further changes were made. Although it is a pity that the recommendation was not accepted, it is, nonetheless, welcome that the 2011 act introduces a code of conduct for factors and more regulation.

It is important that the application of those provisions is closely monitored, as the issue of switching factors was of concern in the debate surrounding the 2011 act and remains a concern now. The minister’s assurances in that regard are appreciated.

The committee also heard about the problems that are associated with the appointment and dismissal of landowning land maintenance companies that have been well documented in today’s debate and have been detailed by my colleague John Lamont. I very much welcome the Government’s agreement to introduce a new code of conduct for those companies.

Concern was also expressed about the operation of section 53, which gives rights to enforce restrictions on property to arguably too many owners. The Government’s decision to refer the issue to the Scottish Law Commission is, therefore, a good one.

This has been a good debate and I hope that it will be one of many post-legislative scrutiny debates in 2014.

Photo of Graeme Pearson Graeme Pearson Labour

The debate has been a useful exercise in revisiting the decisions that were made by an earlier Parliament about what has proved to be a complex area of relationships.

Two points arise from our discussion this afternoon. First, the maintenance of property—houses and flats—and the environment around those houses and flats is critical if one is to maintain the quality of living that we would hope for in Scotland. The committee acknowledged that solicitors have a part to play in ensuring that those who become owners of property are aware of their responsibilities in that regard and understand the implications that arise from those responsibilities. The Law Society acknowledged that it has a duty in that regard and indicated that it delivers that advice. However, from the evidence that the committee heard, there is little doubt that owners seem vague about whether that information has been passed to them. At the very least, therefore, there is an issue with the communications that are received and understood by clients at the important time of purchase and sale.

Secondly, it is fair to say that both factors and land maintenance companies provide an important service and expect—and probably require, in business terms—stability in the relationship. However, the committee heard in evidence—and we have heard from various members this afternoon—that there seems to be, at the very least, an absence of trust in the relationship between property owners and those companies that deliver a service. In that context, the recommendations on transparency in the costs of services, the quality of service that can be expected and the timescales that apply to the delivery of that service are vital. Some members have commented on the apparent inability of companies to understand the needs of property owners, and that is part of the problem that we dealt with during our committee discussions.

The committee spent a great deal of time in gaining an understanding of the issues around land maintenance companies and their fees. Collectively, as was seen during our discussions, we came to understand that there is a real need for tenants or owner associations to deal with those issues. The fact that two eminent academics disagreed so obviously in front of us was not only juicy and much enjoyed, but reflected the fact that there is a need for the Scottish Law Commission to have a look at how section 53 relates to the circumstances. Its advice on that would be much welcomed.

The Government’s moves to issue guidance on this whole area of activity and the way in which data can be transferred between the various owners are welcomed. Nevertheless, I proffer to the minister that, as well as guidance, continuing and obvious commitment from Government to oversee the circumstances that we have discussed this afternoon and a commitment to deliver will be significant in leading the way forward in the future.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

This has been a helpful and constructive debate. Graeme Pearson was right to remind us fairly early on that this legislation was the third part of the early parliamentary reform of land and property ownership in Scotland. However, of the Land Reform (Scotland) Act 2003, the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003, the latter is perhaps seen as the least sexy of the three.

The debate has demonstrated the inevitable complexities of the 2003 act and how it can have a significant effect on peoples’ lives. It has also demonstrated the value of post-legislative scrutiny, particularly in areas that are technical but have real impact. Like Patricia Ferguson, I, too, wish that I had a magic wand to deal with all the issues raised on the timescale in which we might wish to do so.

Many members, including Graeme Pearson and Roderick Campbell, have understandably commented on landowning land maintenance companies, which I will shorten to LMCs, if the Presiding Officer is happy with that. The Government fully recognises the concerns in that area and the difficulties that arise in relation to dismissing and replacing LMCs. That is why we said in our response to the Justice Committee that

“doing nothing is not an option”.

That is also why we are committed to preparing a transparent code of practice on the switching of landowning LMCs and why we will legislate if a voluntary code does not work.

Photo of Patricia Ferguson Patricia Ferguson Labour

I sincerely hope that the minister will take my intervention in the way that it is intended. I draw her attention to the fact that, when I originally proposed that we should regulate property factors, the Government’s attitude was that we should not do so but instead have a voluntary code and, if that worked, that was fine but if it did not, it would then look to legislate. Had we gone down that road, we still would not have any legislation to regulate property factors. It might just be worth thinking about whether the same might apply to landowning land maintenance companies.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I understand where the member is coming from. I was about to go on to talk about the timescale for the code as was raised by John Lamont. A draft is being prepared and we aim to circulate that in spring, with a view to finalising it before the end of the year. That is the timescale to which we are working.

John Lamont and Roderick Campbell also raised questions related to the enforceability of burdens in favour of LMCs. That is not a matter for the Government; rather, it is matter for the courts or the Lands Tribunal for Scotland. I know that Consumer Focus Scotland was planning a test case, but it no longer has a remit to do so. Although the Government can see the benefit of a test case, it is not for the Government to raise such a case.

I will move on to the role of local authorities in land maintenance that some members mentioned. The committee noted in its report that local authorities might still have a role in relation to the maintenance of common areas. The Government agrees that authorities have a role in areas such as planning and the adoption of roads; indeed, in some cases, authorities may wish to carry out maintenance at their own hand. The Government welcomes that option but does not consider that we could require authorities to carry out land maintenance. However, we will work closely with local authorities and others on our forthcoming review of land maintenance arrangements.

The committee convener, Christine Grahame, and John Lamont mentioned the problem of people not being told about land maintenance arrangements when they bought their property. I have mentioned that general issue to the Law Society of Scotland to emphasise that conveyancing solicitors should tell their clients about obligations in that area. I note that the Law Society was the only external organisation to provide a briefing for the debate and I think that it has taken that issue on board.

For new-build properties, the consumer code for home builders, in force since April 2010, lays down that developers should provide information to home buyers on management services to which the buyer would be committed. We follow up any breaches of that code, so members are welcome to draw any potential breaches to my attention.

Although not raised specifically by any member, the Scottish Government’s consultation on the home report asks, at question 23, whether an additional question on land maintenance fees should be added to the property questionnaire.

I will now turn to factors. As well as issues in relation to land maintenance companies, the debate also showed that there continue to be some concerns about factors. I accept that switching is low. That is partly because switching a factor will always be more difficult, given that a collective decision is required to switch factors—that is not the case for energy companies—and partly because consumers do not have enough information on how to switch. We will produce a comprehensive guide on that and we will do more to encourage residents’ associations, an issue raised by some members.

Patricia Ferguson asked specifically about factor arrangements in uncompleted developments. We are committed to addressing that issue through guidance on managing burdens and also possible model title conditions for factors.

Sandra White and other members raised concerns about consumer access to the Lands Tribunal. I reiterate that I will consider the issues further in the context of potential primary legislation—I remind members about the Tribunals (Scotland) Bill—and tribunal rules. I will write to the committee on expenses caps and other potential options.

Sandra White raised a couple of other small points and I will deal separately with those directly with her.

Alison McInnes referred to potential OFT interest. The OFT considers that it has already examined the Scottish market. However, it plans to examine the English market, which may be what she is picking up on.

Rod Campbell questioned the SLC’s timescale for considering section 53. The SLC is currently on its eighth programme, which runs until the end of 2014. Jenny Marra wanted to know the likely timescale of the Government’s response to what it will recommend, but the SLC will probably take a couple of years to provide its report, which in turn means that it is likely that implementation will be post-2016, which is to say, of course, in the next session of Parliament. We will, of course, draw the SLC’s attention to the debate.

The Government has welcomed the committee’s report. We have responded and will carry out follow-up actions. Such work shows the value of the committee system. We will keep the committee informed about progress.

Photo of Elaine Murray Elaine Murray Labour

The debate has been rather more interesting than its title might have suggested it was going to be. Indeed, it has concerned a number of issues on which, as we have heard, many MSPs have received representations over the years and on which the Parliament passed legislation to try to address some of the complex matters that are involved.

When I said that we were having the debate, Jenny Marra confessed to me that it was partly her responsibility that post-legislative scrutiny had been undertaken on the matter. The inquiry—during which the committee took evidence on how the Title Conditions (Scotland) Act 2003 works, what its unintended consequences have been and how it could be improved—is a welcome instance of post-legislative scrutiny.

The act concerns the obligations that appear in the title deeds when properties are purchased. Those are the sorts of things that buyers ought to read but often do not. Many of us are often not aware of what is in our title deeds until it is too late and consequences have arisen.

I was not a member of the Justice Committee when the inquiry took place and, although I was a member of the Parliament when we passed the act, I struggled to recall the detail of its contents. Therefore, I am grateful to the clerks for the informative notes provided to me and, indeed, grateful to all the members who took part in the debate, as I have learned something from their speeches.

Title conditions are a complex area of law and, although many home owners are affected by the burdens contained in their title deeds, there is, in general, a lack of knowledge and understanding of how the legislation works, what the obligations mean in practice, and whether and how they may be altered. As the debate has demonstrated, the issues that were raised in the inquiry affect many people and, in particular, can have a big effect on home owners.

As the convener said, the committee focused on the provisions in the act relating to the appointment and dismissal of property factors and the operation of the land-owning maintenance model. That is an arrangement whereby a private company owns the green space and, in some cases, facilities such as the sustainable urban drainage schemes—SUDS—and requires neighbouring properties to pay for the servicing of those areas through burdens in their title deeds.

I will reflect on the points raised in the committee’s inquiry and the debate and on the Government’s response to the committee’s report.

Section 53 of the 2003 act gives neighbours the right to enforce real burdens against each other where there is a common scheme and the properties are related. However, the committee heard concerns about how that works in practice. Jenny Marra, in particular, reflected on the uncertainty that purchasers have about who might have the right to enforce burdens on them and the confusion that that can cause during the purchase of properties.

A key recommendation of the report was that section 53 be referred to the Scottish Law Commission for further consideration, as it seems to have created difficulties and confusion. Several members commented on the fact that it has not been a satisfactory provision. The committee welcomes the Scottish Government’s commitment to refer the section to the Scottish Law Commission, and I hope that the referral will allow the issue to be resolved.

On land maintenance companies, the committee heard a lot of evidence about the complexity of the law on the land-owning maintenance model. It is clear that many members are familiar with the problems that their constituents have faced and with the fact that the model can be highly unsatisfactory as far as home owners are concerned. They have no choice of service provider—the developer selects the service provider—and little recourse is available to them, as it is sometimes uncertain whether the provisions of the 2003 act apply.

In contrast, the Property Factors (Scotland) Act 2011, which was introduced by my colleague Patricia Ferguson, was drafted to include arrangements on standards of service and reference to the Homeowner Housing Panel, but I was interested in Sandra White’s comments, which indicated that factors ignoring decisions by the Homeowner Housing Panel might be causing problems.

Although legislation is not forthcoming “at this stage”, the Government’s commitment to provide a code of practice on dismissing and replacing land maintenance companies is welcome. Codes of practice may work well, but they may not, and I am pleased that the Government has committed to reviewing the code’s effectiveness after three years and that it has not ruled out legislating in the future if that is necessary.

The committee also expressed the view that local authorities could have a role to play in overseeing the maintenance of green space around developments, and that has been reflected in the Government’s commitment in the long term to review the role of local authorities. I understand the frustration that some members have expressed about the fact that certain areas are maintained by the local authority, whereas similar areas in newer housing estates are not—that is frustrating for residents, too. However, I think that we can understand why, at the current time, local authorities might be reluctant to offer their services, given the financial restraints that they are under.

Alison McInnes made reference to the fact that there is little that owners can do to seek redress when the service that maintenance companies offer is not satisfactory. I think that the committee will be disappointed that the Government does not intend to fund a mediation service, which relates to the point that Alison McInnes made. The Homeowner Housing Panel and the small claims procedure are useful mechanisms, but the committee took the view that a transparent mechanism needed to be established. Perhaps the Government could reflect further on that.

The committee heard of concern about the operation in practice of section 63 of the 2003 act, which sets maximum time limits on how long a manager burden can last. In particular, when a property is purchased under the right to buy, that period is 30 years, which seems to be a long time. The minister mentioned that the Government intends to abolish the right to buy, but there will still be a number of people who have bought their property fairly recently who will have quite a long period of time to run on those contracts. It remains a concern that a two-thirds majority is required to switch property factor and that that is creating a barrier to switching.

Patricia Ferguson and other members mentioned absentee landlords and commented on the fact that contact does not ensure co-operation. Mention was also made of the situation in which developments are abandoned before they have been completed, which can give rise to problems in switching factors.

On data protection, the Government’s commitment to consult the Information Commissioner’s Office prior to providing guidance to the property management sector should help to clarify matters, as should the Government’s intention to provide more information on its website and guidance, and to include that in the code of practice for property factors.

The committee raised concerns about lack of accessibility to the Lands Tribunal, which relates particularly to the objector’s liability for expenses. I was interested in the point that Roderick Campbell made about whether that might be of import to the Tribunals (Scotland) Bill.

Christian Allard referred to the need to change the culture. It is clear that there is a need to promote a culture of mutual responsibility in relation to the maintenance of common areas, and I am sure that the committee will be interested to learn what further steps the Government intends to take, following its commitment to examine the issue in future.

The committee’s inquiry has been helpful in raising issues to do with the operation of the 2003 act. I also believe that, as other members have said, it demonstrates how useful post-legislative scrutiny of acts passed by the Parliament can be. It is unfortunate that the current legislative workload of the Justice Committee makes it extremely unlikely that it will be able to undertake similar post-legislative scrutiny in the near future. However, I am sure that other committees will take up that opportunity, and I hope that today’s debate and the issues that the Justice Committee raised in its inquiry will stimulate them to undertake similar exercises.